Mediation

Small claims court is often a great resource. But a dispute in small claims court is still a court case, in a courthouse, before a judge, and the court process can be long, time consuming, and frustrating. Because of this, it is a good idea for you to think about other ways to resolve your dispute.

A great option is mediation, where you and the other side meet with a neutral person – called a mediator – who is specially trained to help people resolve their disputes without having to go in front of a judge. In mediation, everyone works together to find a solution, instead of having the judge make a decision.

The mediator will not force you to reach an agreement. Whether you decide to resolve your dispute, and how you resolve it, is up to the 2 of you. And if you cannot settle, you can still go in front of a judge to decide. There is nothing to lose by trying mediation, and there is a lot to gain.

There are a lot of reasons why it is a good idea to mediate your small claims dispute, whether you are the plaintiff or the defendant.

You should consider mediating your case because:

During your court hearing, you only have about 5 or 10 minutes to present your case. In mediation, you have as long as you and the other side need to talk about your situation, even as long as 2 hours.

Court hearings are open to the public and everything you say to the judge will be heard by everyone who is sitting in the courtroom. Mediation is confidential and private, so what you say in mediation cannot be used against you in court later.

If you go in front of a judge, the judge has to apply the law to the facts of the case and take into account only those facts that the law considers relevant. In mediation, you can talk about other issues that may not be directly related to the law but are very important to you and how you feel about the dispute.

A judge usually has to make a decision about money, and whether 1 side owes the other money. In mediation, the parties can reach an agreement that goes beyond the money issues and can include, for example, giving 1 side a chance to fix a problem, return property, or apologize. In mediation, you have more room to create an agreement that suits the 2 of you and your particular situation.

Different types of cases have different deadlines for filing. If you file a claim in court after the deadline for your type of case has passed, the judge will have to apply the law and you will lose your case. But, you can still resolve your case in mediation, since you, the other side, and the mediator have more flexibility than the judge and can make an agreement beyond what the law requires.

Mediation can be very helpful in disputes between neighbors and family members because of the importance of the relationships between the parties.

When the judge makes a decision, at least 1 side usually does not like the judge's order, and often neither side is happy. In mediation, both sides usually agree on the outcome so they all accept it. Mediated agreements are often more likely to be followed than a court order that is imposed by the judge.

If you are the plaintiff and win in court, getting paid can be very difficult and you may have to spend more money and time. If you reach an agreement through mediation, you will not need more court hearings, and the other side is more likely to pay you because they were part of reaching that agreement and had a chance to really be involved in the resolution of the dispute.

If you are the defendant and you lose in court, the court will enter a judgment against you, which will show on your credit report and could hurt your credit. In mediation, you can reach an agreement with the plaintiff and there will not be a court judgment entered against you, so your credit will not be affected.

When Can You Go to Mediation?

Any time you are having difficulty resolving a dispute with a person or business, you can suggest mediation to the other party:

It may help to give the other party information about mediation. Consider giving him or her a link to this information or a printout of this page.

Consider asking the other person to suggest a mediator to help resolve the dispute.

If you are sending or responding to a demand for payment or for a problem to be fixed before filing a lawsuit, consider asking the other side to mediate the dispute.

Some mediators will call the other side for you, explain mediation to them, and encourage them to mediate your dispute.

You can ask the other side to mediate your dispute before or after a small claims case is filed.

How Does Mediation Work?

You can go to mediation before or after you start your small claims case.You and the other person meet with a mediator. The mediator will facilitate a discussion between you and the other person in an attempt to resolve your dispute.

Usually, mediation of a small claims dispute lasts anywhere between 30 minutes and 2 hours.

Mediation may be free, or you may have to pay a small fee.

Preparing for mediation Preparing for mediation is a lot like preparing to go to a court hearing. It is important to identify and organize the facts that are relevant to your dispute. And you should make sure you know about the facts that support the other side, not just those that support you.

It is also important to understand the law that applies to your dispute. Read the different sections in this website and talk to your small claims advisor so you can learn about the law in your case and get help with your small claims case.

If you are going to mediation before or instead of a hearing, there are some other things you should do to prepare:

Think realistically about how the judge will decide the case if you do not settle in mediation.

Think about whether you or the other side has angry or hurt feelings, and why.

Think about what you and the other side would really like to accomplish through the lawsuit.

Think about whether something besides, or in addition to, money might help to satisfy you or the other side.

Think about what you would be willing to settle for to avoid going to a hearing, to avoid the possibility of losing, or to avoid the possibility of not collecting if you win.

Keep in mind that the court cannot provide you with an interpreter so, if you do not speak and understand English well, you should bring your own interpreter to your mediation. Do not bring a child to interpret for you.

How you should behave at the mediation

Present your side of the dispute clearly, but listen carefully to the other side’s point of view.

Present your suggestion for settlement, but also listen to the other side’s proposal and be open to other ideas.

Remember that mediation is about a give and take. There are 2 sides to every story, and although you may feel like you are 100 percent right, you may learn things from the other side during the mediation that make you realize that the blame is not entirely theirs.

If your mediation is successful and you are able to reach an agreement, you will be much more satisfied with the process. You will find that you are less frustrated about what happened, and more empowered, because you were able to resolve your dispute to your satisfaction without needing to have a judge decide what is best for you.

Finding a Mediator

Many counties have non-profit dispute resolution programs that provide free or low-cost mediation before or after a lawsuit is filed. To find a program near you, visit the California Coalition for Community Mediation's website. Or ask your court for a list of mediation programs in your area.

Many small claims courts offer free or low-cost mediation either before the hearing or on the day of the hearing. Talk to your small claims advisor or court clerk to find out more.

You can also contact your local bar association. To find a bar association in your area, contact the State Bar's Lawyer Referral Services program. (Type your county or region in the search box).

Private mediators are available in many communities, and they often advertise in the Yellow Pages or legal newspapers or on the Internet. Look up "Arbitrators" or "Mediators" to find listings. Their backgrounds and fees vary considerably, so be sure to ask!

Small Claims Legal Advisor and Resources

Every county in California has a small claims advisor that can help you with your case. The small claims advisor can help you research and understand the law in your case, fill out your forms, understand service and how to do it correctly, and prepare for your hearing. The advisor can also help you explore whether mediation may be a good option for you and help you find a mediator.